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Tribe: Sotomayor’s a ‘bully’ and ‘not nearly as smart as she thinks she is’ (access required)

Politically savvy folks should know by now that if they put their thoughts or opinions down on paper – even in a confidential memo to the president – they will one day see the light of day.

Case in point: yesterday’s unearthing of a May 2009 letter noted Harvard Law School professor, Supreme Court litigator and presidential advisor Laurence Tribe wrote to President Barack Obama giving his thoughts on who should – and should not – replace Supreme Court Justice David Souter, who had just announced his retirement.

Tribe warned Obama that appointing “someone like Sonia Sotomayor” was a bad idea.

“Bluntly put, she is not nearly as smart as she seems to think she is, and her reputation for being something of a bully could make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court on issues [like] voting rights and the Title VII case of the New Haven firefighters,” Tribe wrote, referencing then Judge Sotomayor’s role in the 2nd Circuit ruling in the controversial firefighter discrimination case Ricci v. DeStefano.

In the letter – posted yesterday by conservative commentator Ed Whelan, president of the Ethics and Public Policy Center – Tribe strongly urged Obama to select Elena Kagan, the former dean of Harvard Law whom Tribe knew well, for Souter’s seat.

Tribe wrote that Kagan’s “combination of intellectual brilliance and political skill would make her a ten-strike, if you will forgive my reference to bowling.”

Tribe also said he was a fan of 7th Cir. Judge Diane Wood, who he called “more powerful intellectually than Sonia Sotomayor or any of the others mentioned as plausible prospects at the moment with the sole exception of Kagan.” But he noted that, given Wood’s age, she “would be likely to serve nearly a decade less than Elena and doesn’t appear to me to have the dynamic personality or the extraordinary diplomatic gifts for inspiring confidence and for moving others.”

In a National Review Online piece accompanying the letter, Whelan noted that after Sotomayor’s nomination, Tribe seemed to show support for the nominee in a New York Times article. “The president’s inquiries into the way she interacts convinced him that she would be a positive force in the chemistry of the Supreme Court,” Tribe told the Times.

“Translation of this last sentence: ‘I couldn’t persuade Obama not to pick her,'” Whelan wrote.

Tribe told the Wall Street Journal‘s Jess Bravin yesterday: “I don’t comment on my confidential advice to the president, and I regarded the letter I wrote in May 2009 as confidential. The fact that it was leaked doesn’t change my policy….I would also stress that the reservations I expressed about Justice Sotomayor prior to her appointment were amply refuted by the closer study I was later able to give her record and that have been fully negated by her performance as a justice.”

O’Connor robocall gaffe raises ethical questions (access required)

The robocall snafu that caused thousands of Nevada residents to be awakened in the middle of the night with a message from retired Supreme Court Justice Sandra Day O’Connor has opened a bigger can of worms.

Not only was the justice’s recorded message not intended to ring the phones of Nevadans at 1 a.m. Monday. O’Connor says she never intended for the message to be used at all in automated phone messages, blogs The National Law Journal‘s Tony Mauro.

“I did not authorize the use of my recorded statement as part of automated telephone calls to Nevada residents, and I regret that the statement was used in this way,” O’Connor said yesterday in a statement issued by the Court. “In addition, I view my efforts in support of judicial reform as consistent with the Code of Conduct for U.S. Judges.”

The statement was released after a National Review Online piece questioned whether O’Connor’s advocacy for a ballot measure that would create a merit-based state judicial selection system violated ethics rules, since the retired justice still sits on federal courts. The Code of Conduct for United States Judges prevents federal judges from participating in political activities.

In the NRO piece, Ed Whelan notes that O’Connor cast the deciding vote Tuesday in Gonzalez v. Arizona, a 9th Circuit ruling striking down an Arizona law requiring voters to present identification and proof of citizenship before voting. “That’s just one illustration why the ethics rules bar her from engaging in political-campaign activity while still sitting as a federal judge,” Whelan wrote. Mauro notes that Whelan is also president of the D.C.-based Ethics and Public Policy Center.

While Whelan asserts that O’Connor’s participation may violate ethics rules, DePaul University College of Law Prof. Jeffrey Shaman tells Mauro that the Code of Conduct does not apply to Supreme Court justices, although justices have said they adhere to the code anyway.

“The idea was that Supreme Court justices are so visible that any misconduct could be taken care of through the political process,” Shaman said.

In the middle of the night, justice calls (access required)

It’s 1 a.m., and the phone rings. Who do you expect it to be?

For many Nevada residents, the voice on the other end of that middle-of-the-night call was retired Supreme Court Justice Sandra Day O’Connor.

A glitch caused thousands of Nevadans’s phones to ring in the wee early hours with a robocall message from O’Connor urging them to vote for a measure that would create a merit system for selecting judges as opposed to judicial elections, reports the Las Vegas Review-Journal. O’Connor has been a vocal opponent of elected judicial systems.

The public relations company in charge of the phone campaign said the error was both human- and computer-based: instead of being programmed to dial homes at 1 p.m., the computer was set to dial residents at 1 a.m.

The next afternoon the residents got another phone call – this time apologizing for the late-night interruption. Still, the company in charge of the campaign was fired for the mishap.

[Hat tip: ABA Journal]

Scalia and Kagan, target shooting partners? (access required)

Did Justice Antonin Scalia try to sway the views of the Justice Elena Kagan on the Second Amendment by taking her target shooting?

Here’s what we know: two people think they saw Scalia and Kagan skeet shooting at a Virginia gun club last week.

The witnesses claimed to see the pair at the Fairfax Rod and Gun Club, where Scalia is a member, on Wednesday. He was apparently teaching a woman who was “noticeably diminutive in height” how to hold a shotgun. The witnesses went in for a better look, and told The Daily Caller that Scalia’s companion was Kagan.

Kagan’s views on the Second Amendment are believed to be quite different from that of Scalia, who penned the Court’s majority opinion in D.C. v. Heller, establishing an individual right to bear arms under the Second Amendment. Kagan, on the other hand, penned a memo as a law clerk for Justice Thurgood Marshall in which she said she was “not sympathetic” to the Second Amendment argument in a similar case based on the District of Columbia’s handgun ban.

Neither the gun club nor the Supreme Court would comment to the Daily Caller, so what this all means to the future of Second Amendment jurisprudence remains a mystery.

DeFazio: ‘I’m investigating articles of impeachment against Roberts’ (access required)

Rep. Peter DeFazio is still hopping mad over the Supreme Court’s decision last term in Citizens United v. FEC – so mad, that the Oregon Democrat is floating the idea of trying to take Chief Justice John G. Roberts, Jr.’s job away.

Fazio told the Huffington Post that the 5-4 opinion lifting certain campaign spending caps on corporations amounted to judicial activism. By joining the majority, DeFazio reasoned, Roberts reneged on his pledge during his 2005 confirmation hearings not to make new law from the bench.

“I mean, the Supreme Court has done a tremendous disservice to the United States of America,” DeFazio said. “They have done more to undermine our democracy with their Citizens United decision than all of the Republican operatives in the world in this campaign. They’ve opened the floodgates, and personally, I’m investigating articles of impeachment against Justice Roberts for perjuring during his Senate hearings, where he said he wouldn’t be a judicial activist, and he wouldn’t overturn precedents.”

During his confirmation hearings, Roberts famously said: “Judges are like umpires. Umpires don’t make the rules; they apply them.”

Don’t expect articles of impeachment to be coming any time soon, however. The only Supreme Court justice to face an impeachment trial in Congress was Justice Samuel Chase – in 1804. And Chase won.

“I think it’s probably an understatement to say it’s extremely unlikely the House of Representatives will do anything about this,” said University of North Carolina at Chapel Hill School of Law professor Michael J. Gerhardt. “Impeachment resolutions are introduced all the time, but very little comes of most of them, because most lack any merit and most just have no political support behind them.”

Even the nation’s top justice skips the fine print (access required)

Do you read the disclosures that pop up on your screen before clicking on certain websites? How about the finely-printed warnings that accompany medications?

Yeah, neither does Chief Justice John Roberts, Jr.

“You open the thing and a folder falls out,” Roberts said a forum this week at Canisius College in his native Buffalo, the Washington Post reports. “The smallest type you can imagine and you unfold it like a map.”

Roberts acknowledged the reason that those hard-to-read disclosures we all ignore exist in the first place: lawyers.

“It is a problem, because the legal system obviously is to blame for that,” Roberts said, noting that such warnings make consumers less likely to read warnings, not more.

The solution?

“What the answer is, I don’t know,” Roberts said.

At the event Roberts weighed in on the issue of whether justice should attend the president’s State of the Union address. Some justices – including Roberts himself – have expressed discomfort about being present at an event with such a political atmosphere. Others, such as Justice Stephen Breyer, believe it is important for justices to be there.

“Some of my colleagues made the decision that they don’t want to go, period, and I think that’s something that’s up to each individual member of the court,” Roberts said.

Conspiracy theories abound over Thomas-Hill phone call (access required)

In the 24 hours or so after news broke that Justice Clarence Thomas’ wife called Anita Hill to ask her to apologize for “what you did with my husband,” pundits have offered their theories on why Virginia Thomas really made that call.

“Did Thomas intend the message to become public?” asks Emily Bazelon in a column for Slate. “Given her savvy and experience, it’s hard for me to imagine that she didn’t consider the possibility. And the voice mail makes a lot more sense to me as a way to resurrect this old tale to appeal to her conservative base than as an ‘an olive branch to [Hill].'”

Washington Post guest pundit Nancy Goldstein also doubts that Ginni Thomas’ call was a benign attempt to get an apology.

“More likely, Thomas and/or her handlers sought to create a diversion,” Goldstein wrote. “Funny coincidence: the very morning of the voicemail, The New York Times published ‘Activism of Thomas’s Wife Could Raise Judicial Issues,’ which asks whether it isn’t kind of problematic for a U.S. Supreme Court Justice’s wife to start a Tea Party-linked organization ‘dedicated to opposing what she characterizes as the leftist “tyranny” of President Obama and Democrats in Congress’ — and then go dialing for donors in her capacity as its leader.”

If the idea was to deliberately create a diversion from Mrs. Thomas’ Tea Party-related activities, it doesn’t seem to have worked. The Los Angeles Times has a piece on her work to repeal the health care law, which she deems unconstitutional. The piece points out that the constitutionality of the law is an issue that is all but certain to go before the Supreme Court. [UPDATE: The Times today reports that Liberty Central, the conservative group founded by Virginia Thomas, has backed off calling the healthcare law unconstitutional, removed such wording from its website on Thursday, and blamed staff errors for the statements. “Liberty Central assiduously avoids taking a position on the constitutionality of this, and other issues, and will continue to do so in the future,” Sarah Field, the group’s chief operating officer, told the Times. Probably a good move considering, again, the matter could go before Justice Thomas and the rest of the Court.]

The Boston Herald‘s Lauren Beckham Falcone has a simpler explanation.

“I think she saw a can of Coke and just lost it,” she wrote.

Thomas’ wife asks Anita Hill for apology, Hill says no (access required)

“Good morning, Anita Hill, it’s Ginni Thomas.”

That was the beginning of a voicemail message received a few days ago by Anita Hill, a professor at Brandeis University who is still likely best known as the woman who accused then-Supreme Court nominee Clarence Thomas, Virginia “Ginni” Thomas’ husband, of sexual harassment during his 1991 confirmation hearings.

“I just wanted to reach across the airwaves and the years and ask you to consider something,” continued the voicemail, left on Hill’s office exchange. “I would love you to consider an apology sometime and some full explanation of why you did what you did with my husband. So give it some thought and certainly pray about this and come to understand why you did what you did. Okay have a good day.”

Hill’s reaction, believing it was likely a prank, was to call campus police, who in turn passed the message on the FBI.

But it was not a prank – ABC news confirmed it with Mrs. Thomas herself.

The Thomases at the justice's oath ceremony

The Thomases at the justice's 1991 oath ceremony

“I did place a call to Ms. Hill at her office extending an olive branch to her after all these years, in hopes that we could ultimately get passed what happened so long ago,” Mrs. Thomas told ABC News in an email. “That offer still stands, I would be very happy to meet and talk with her if she would be willing to do the same. Certainly no offense was ever intended.”

Hill, however, said she was taken aback by the message.

“I though it was certainly inappropriate,” Ms. Hill said in an interview with The New York Times. “It came in at 7:30 a.m. on my office phone from somebody I didn’t know, and she is asking for an apology. It was not invited. There was no background for it.”

And, Hill said, no apology will be coming the Thomases’ way, because none is warranted.

“Even if it wasn’t a prank, it was in no way conciliatory for her to begin with the presumption that I did something wrong in 1991,” Hill told ABC News. “I simply testified to the truth of my experience. For her to say otherwise is not extending an olive branch, it’s accusatory. … I don’t apologize. I have no intention of apologizing and I stand by my testimony in 1991.”

During Thomas’ confirmation hearings 19 years ago, Anita Hill – then a law professor at the University of Oklahoma – came forward with accusations that Thomas sexually harassed her when she worked with him during his tenure as head of the Equal Employment Opportunities Commission. Hill told lawmakers that after she rebuffed his attempts to date her, he made inappropriate sexual comments to her, including references to pornography and pubic hair.

When the media and lawmakers seized upon the allegations, Thomas famously called the maelstrom over Hill’s testimony “a high-tech lynching.”

Thomas has consistently denied Hill’s claims. In his 2007 autobiography, “My Grandfather’s Son,” Thomas recalls – often bitterly – his tumultuous confirmation hearings, including Hill’s testimony. “I was being pursued not by bigots in white robes but by left-wing zealots draped in flowing sanctimony,” Thomas wrote

Thomas was ultimately confirmed by a vote of 52-48, the lowest margin for any successful Supreme Court nominee.

Hill has steadfastly stood by her story. In her 1998 book, “Speaking Truth to Power,” Hill said that despite the threats she received during and after her testimony, she does not regret it. “‘Would I do it again?’ I am often asked, and my answer is the same,” Hill wrote. “I would again answer truthfully when asked. I would pursue the matter once I filed my statement. I would testify as frankly and clearly as possible when questioned.”

O’Connor talks jazz and democracy with Marsalis (access required)

Much has already been written about Justice Sandra Day O’Connor’s quest to boost civics education. But did you know that she is also an avid jazz fan?

Those two passions came together in a new educational series in which O’Connor joins jazz legend Wynton Marsalis in a conversation about the role of jazz in American democracy.

“Jazz calls us to engage with out national identity,” O’Connor says in the program, called Let Freedom Swing: Conversations on Jazz and Democracy. “It gives expression to the beauty of democracy, and of personal freedom, and of choosing to embrace the humanity of all types of people. It really is what American democracy is supposed to be.”

The project – a collaboration by Jazz at Lincoln Center, The Documentary Group, and Columbia University’s Teachers College – features historians, musicians, and students discussing the connection between jazz and American democracy through themes such as freedom of expression and patriotism.

O’Connor describes the approach of jazz musicians in a way that sounds similar to the way the justices of the Supreme Court engage during conferences or oral arguments. “Each takes a turn performing and the others listen,” O’Connor says.

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